DATE: 20050405

DOCKET: C35550

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – KENNETH BAIN (Appellant)

BEFORE:

WEILER, BORINS and ARMSTRONG JJ.A.

COUNSEL:

James Lockyer

for the appellant

Riun Shandler

for the respondent

HEARD & RELEASED ORALLY:

April 1, 2005

On appeal from the conviction entered on January 19, 2000 by Justice John R. McIsaac of the Superior Court of Justice, sitting with a jury.

E N D O R S E M E N T

Background of the Appeal

[1] The appellant, Kenneth Bain, was charged with sexual assault and administering a stupefying drug with intent to assist him in committing an indictable offence. He was convicted of sexual assault. The charge for administering a stupefying drug was stayed by the Crown at trial. It was the appellant’s defence to the charge of sexual assault that he and the complainant were engaged in a prostitute client relationship and that the complainant consented to have sex with him for money.

[2] On January 21, 2000, the jury found the appellant guilty of sexual assault. His sentencing hearing was scheduled for April 19, 2000. Two weeks before the sentencing hearing, the Crown disclosed evidence to the defence, in the form of a taped conversation between the night auditor of the Regency Hotel and a man named Aldo Vitale, who worked at Bunnies, that strongly suggested that the complainant was working as a prostitute within two months of the date in question and from which an inference could also be drawn that she was also engaged in prostitution at the relevant time.

[3] The sentencing hearing was adjourned and the appellant brought an application pursuant to sections 7 and 24(1) of the Charter for a mistrial. McIsaac J. held that he had no jurisdiction to grant a mistrial.

[4] The appellant appeals his conviction for sexual assault on the grounds that the Crown failed to disclose relevant information and that the trial judge erred in holding that he had no jurisdiction to grant a mistrial.

Analysis

[5] The first issue is whether there is a reasonable possibility the jury’s verdict would have been affected by the evidence that was not disclosed.

[6] In our opinion, the undisclosed evidence meets the tests in R. v. Dixon, [1998] 1 S.C.R. 244 and R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307 and the appellant’s conviction should be quashed.

[7] At trial, there was no direct evidence, other than from the accused, that the complainant was a prostitute. As a result of the Crown’s inadvertent non‑disclosure, the defence did not have the opportunity to confront the complainant with evidence that contradicted her statement at trial that she was not a prostitute. The fresh evidence is independent evidence from which the jury could infer that she was a prostitute at the relevant time and thus would have engaged in sex for money. Also, the Crown’s position at trial was that the complainant was not a prostitute. In cross‑examining the appellant, the Crown used the fact that the appellant had initially not told the police that he had paid the complainant for sex to suggest that the appellant was lying when he said the complainant was a prostitute. If the Crown had had the information that is now available we think it unlikely he would have presented the case in the manner he did. Certainly, whether the complainant was working as a prostitute was central to the case for both the defence and the Crown. There is a reasonable possibility that the failure to disclose the taped conversation affected the verdict.

[8] In view of our disposition on the first issue it is not necessary for us to address the jurisdiction issue.

Disposition

[9] Accordingly, we would allow the appeal and quash the conviction and order that a new trial be held. As the appellant has already served his sentence and as the Crown has reported that the complainant wants this whole matter behind her, the Crown should seriously consider whether it is appropriate to proceed with a new trial.

“K. M. Weiler J.A.”

“Stephen Borins J.A.”

“Robert P. Armstrong J.A.”